Schindler v. Southern Coach Lines, Inc.

• Decision Date: 17 January 1949
• Citation: 217 S.W.2d 775,188 Tenn. 169
• Parties: SCHINDLER et al. v. SOUTHERN COACH LINES, Inc. (two cases).
• Court: Tennessee Supreme Court

217 S.W.2d 775

188 Tenn. 169

SCHINDLER et al. v. SOUTHERN COACH LINES, Inc. (two cases).

Supreme Court of Tennessee.

January 17, 1949

Rehearing Denied March 11, 1949.

Error to Circuit Court, Davidson County; Richard P. Dews, Judge.

Actions by Maud K. Schindler and her husband, Henry O. Schindler respectively, against the Southern Coach Lines, Inc., for injuries sustained by plaintiff wife in attempting to board defendant's bus and plaintiff husband's loss of wife's services. A judgment for defendant was affirmed by the Court of Appeals, and plaintiffs bring certiorari.

Reversed and remanded for new trial.

Charles L. Cornelius, Jr. and C. Weber Tuley, both of Nashville, for plaintiffs in error.

Armistead, Waller, Davis & Lansden, of Nashville for defendant in error.

BURNETT Justice.

We adopt from a memo opinion of Mr. Justice Tomlinson, used in conference on the petition for certiorari, the following:

'Maud K. Schindler commenced this action to recover damages for injuries received as a result of alleged negligence upon the part of the Southern Coach Lines, Inc. Her husband instituted a companion suit to recover loss of services. The two cases were tried together.

'The Circuit Judge overruled the motion for a directed verdict at the close of the plaintiff's evidence, saying that he wanted to hear what the defendant had to say about how this accident occurred. The motion was renewed and sustained at the close of all the evidence on the ground (1) that there was no evidence of negligence upon the part of the defendant, and (2) the injuries were received by reason of the negligence of the plaintiff, Mrs. Schindler.

'The Court of Appeals has concurred in this finding of the Circuit Judge and Mrs. Schindler and her husband have filed this petition.

'Mrs. Maud K. Schindler was a clerk at Harvey's Store in Nashville. She went off of duty at 6 P.M. On this particular February evening in 1947 she was anxious to get home by 6:30 for some reason not stated in the record. She had missed the bus of defendant on which she was accustomed to ride to and from work and was waiting for another when she saw the bus involved in this accident standing at the intersection of the streets waiting for the traffic light to change in its favor. It was the bus that would also carry her to her home. She crossed the street, hurrying to this bus, ran around to the door and knocked on it, thereby requested the operator to open the door and permit her to enter. After waiting a second he opened the door by a lever or button. It was opened in the usual manner and performed in the manner to be expected. When this door opens it projects outward for probably six inches beyond the body of the bus. On this occasion as the driver opened it in response to the request of this lady, it struck her, knocked her down and the result was that she received serious injury. The suit is predicated upon the theory that it was the duty of the bus driver to make certain that she wouldn't be hit by the door as it opened, and that it was by reason of a failure to perform this duty that the accident occurred.

'The plaintiffs invoked the rule of res ipsa loquitur. That rule does not apply. Res ipsa loquitur raises a presumption of negligence by the happening of the event in the absence of any other evidence as to why the accident occurred. That rule does not apply to cases where the accident is alleged and shown to have occurred by reason of a specific act. 'Where proofs are present, there is neither foundation nor room for presumption.' Frank v. Wright, 140 Tenn. 535, 546-548, 205 S.W. 434. In the instant case, the proof is that the accident occurred because Mrs. Maud K. Schindler was standing too close to the body of the bus when the door opened, and the allegation is that it was negligence for the driver to open this door until she stood further back from the bus.

'There is some discussion in the briefs as to whether Mrs. Schindler was a passenger at the time she received the injury. The reason for this discussion is that the public carrier is charged with the exercise of a high degree of care as distinguished from ordinary care, with reference to those who are passengers on its vehicle. The act of getting into the bus for transportation is, of course, an essential element of becoming a passenger. I think, therefore, that in consideration of this petition we should regard Mrs. Schindler as a passenger, and hence that the Bus Company owed to her the duty of exercising a high degree of care in admitting her to the bus.

'The bus driver was on the opposite side of the bus from the door. He was only waiting for the light to change in his favor and move on when this lady requested him to open the door for her. The driver's statement of the immediate transaction is this:

"I turned around and looked at the door, it looked like plenty of clearance, it looked like the door wouldn't hit her and I opened the door.' * * *

"Well, we are taught that way when we are opening the door, especially up town where there are a number of people to get on, to watch the door as a safety measure to be sure there is plenty of clearance.'

'Mrs. Schindler had traveled on this bus or busses exactly similar each day for a number of years in going to and from work. She says that she did not know at the time she received this injury that the door projected beyond the body of the bus as it was being opened. She stated the immediate transaction to have occurred in this manner:

"The door came open with a bang, violently, and knocked me backwards, and I threw my hand--I saw my head was going to hit, and I threw my hand back to kind of catch my lick, and I hit so hard that I just couldn't get up, and I felt the bones just crush in my right wrist, and I didn't know what happened for a few minutes. I was unconscious for a few minutes, nerve shocked.' * * *

"I just walked up, right up to the door and knocked' * * * 'I didn't have to reach out at all.' * * *

"I didn't step back, I was knocked back violently knocked.'

The applicable rule to be followed under the facts and circumstances presented by this record is well stated by Mr. Justice Gailor, speaking for this Court, in Osborn et al. v. City of Nashville, 182 Tenn. 197, 203, 185 S.W.2d 510, 513, as follows:

'It is elementary that when there is material evidence that either of the parties has acted with a lack of care and the lack of care is causally connected with the injury, a jury question is created:

"The question of contributory negligence, as well as the question of negligence, is ordinarily for the jury. Even though the facts be undisputed, if intelligent minds might draw different conclusions as to whether, under circumstances conceded, the conduct of a plaintiff was that of an ordinarily prudent man, the matter should be left to the jury. The court should draw no inference when in doubt, but only in those cases where the evidence is without material conflict, and such that all reasonable men must reach the same conclusion therefrom. It is only in cases where the evidence is susceptible of no other fair inference that the court is justified in instructing the jury, as a matter of law, that the plaintiff has been guilty of contributory negligence which would bar his recovery. [Philip] Carey Roofing & Mfg. Co. v. Black, 129 Tenn. 30, 36, 37, 164 S.W. 1183, 1185 .

"The question of the defendant's liability lawfully can be withdrawn from the jury and determined by the court as a question of law, when and only when the facts are undisputable, being stipulated, found by the court or jury, or established by evidence that is free from conflict, and when the inference from the facts is so certain that all reasonable men, in the exercise of a fair and impartial judgment, must agree upon it.' 20 R.C.L. 169, 170, 171, sec. 141; Lovier v. City of Nashville, 1 Tenn.App., 401; Park City v. Owens, 7 Tenn.Civ.A. 359; Jackson v. City of Nashville, 17 Tenn.App. 413, 417, 68 S.W.2d 137.'

From our review of the evidence of the plaintiff of the facts and circumstances of her injury, and the proximate cause thereof, we are convinced that issues of fact were created, which required that the case be submitted to the jury for determination under the rule above quoted.

It was practically conceded in argument that the relationship of carrier and passenger existed at the time of the occurrence of the plaintiff's injury. Such being true the defendant owed to the plaintiff the highest degree of care for her safety consistent with the general practical conduct of its business. Greyhound Lines Inc. v. Patterson, 14 Tenn.App. 652, 656, 657; Tennessee Coach Co. v. Young, 18 Tenn.App. 592, 80 S.W.2d 107. 'There would seem to be general accord upon the...